Thorough investigation, good documentation and sometimes just tenacity are all factors that can help employers and their attorneys to ultimately prevail in retaliation cases, whether it is via court victory, dismissal of the charge, or being able to settle lawsuits for just nominal amounts.

Earl Miller, counsel at White & Case L.L.P. in Los Angeles, was able to get a case dismissed in its very early stages because of a thorough investigation.

A client's employee had complained a co-worker had sexually harassed her and also threatened her physically.

“We conducted an investigation, went down and spoke to the complaining party and the person she had accused and other people as well,” Mr. Miller said.

Those interviewed included not only employees who were around at the time, but former employees, Mr. Miller said. In addition, he said, “we went out and tracked down” customers who contradicted what she had to say.

The investigation revealed “she had effectively made up the accusation of a physical threat,” said Mr. Miller, who did not want to identify the company.

“It was not just there was no collaboration; there was contradictory evidence” as to the woman's claims, Mr. Miller said.

“The client fired this person for falsely accusing her co-worker and lying to investigators. She filed a complaint with the EEOC alleging not sexual harassment, but simply retaliation for having been fired” for raising the initial complaint, he said.

“We sent a position paper (to the EEOC) and basically laid out everything that had come up in the investigation,” Mr. Miller said. “That was pretty powerful evidence,” which led to the EEOC issuing a “no cause” letter that dismissed the case, he said.

The lesson for other employers is “a first-level investigation” that is less thorough than the one conducted in this case “may not turn up” the evidence that was uncovered here, Mr. Miller said.

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Joel W. Rice, a partner with Fisher & Phillips L.L.P. in Chicago, said in a case heard in an Ohio state court, a worker complained he had been retaliated against because he had complained in an email about a broken dock plate. This is the metal plate whose lip hangs over the loading dock and serves as a bridge for goods to be loaded into the truck.

The worker said by complaining about the dock plate, he was invoking a safety issue and was therefore protected under the law, and his termination was in retaliation for the complaint, Mr. Rice said.

Mr. Rice said he defended the lawsuit on two different bases: First that the termination was part of a reduction in force and the decision to terminate the worker “was made before he had ever sent that email complaint about the dock plate,” the attorney said. As a result, “there couldn't have been any causation there.”

Mr. Rice said also the worker failed to comply with the state's whistle-blower statute's procedural prerequisites regarding how a complaint should be made by emailing it.

Furthermore, under state law, the complaint should have invoked “a clear public policy that was of importance.” Mr. Rice said he argued “this was not a clear public policy concern, that the dock plate was not important or significant enough to raise a safety issue, and it wasn't the type of complaint the state law was intended to protect.”

The defense moved for summary judgment in the case. “That was one where we actually settled it while the summary judgment was pending,” but Mr. Rice thinks the settlement was on “pretty favorable terms” as a result of his arguments.

Kelly H. Kolb, a shareholder at Fowler White Boggs P.A. in Fort Lauderdale, Fla., said in one case, an employee had delayed her termination meeting once or twice, and then sent an e-mail that was “probably drafted by her lawyer, complaining about five or six things she thought were discriminatory.”

She was fired the next day, then alleged her termination was in retaliation for her complaints. “We didn't put much stock in her retaliation claims” and the case was settled “for an extremely nominal amount,” Mr. Kolb said.

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In a case handled by Jason Rossiter, an attorney with Zashin & Rich Co. L.P.A. in Cleveland, a decision was made, but not communicated, to terminate an employee less than 24 hours before he requested Family and Medical Leave Act leave. The employee sued the company, claiming retaliation.

But, because the decision was well documented, it was “fairly easy for (the employer) to demonstrate they had made the decision to terminate the employee well before he requested leave, but they just didn't communicate” that, Mr. Rossiter said. The case was settled for a nominal amount, he said.

In a case defended by Michael Fox, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas, an employee who was fired on his first day back from Family and Medical Leave Act claimed retaliation for taking the leave.

Mr. Fox said the employee, who was a manager, was in fact terminated because had paid an employee to work off the clock. As a manager, he was held responsible if too many hours of overtime were logged by workers, Mr. Fox said.

Mr. Fox said the issue surfaced while the man was out on leave, which is when the employer conducted a preliminary investigation. The defense prevailed at trial “because we could show that we had taken action” on the issue in his absence, Mr. Fox said.

The defense was criticized because it had taken action on the worker's first day back from leave, but if it had acted during the leave, the firm would have been criticized for pursuing someone with a heart condition, the attorney said.

“Employers sometimes have to realize that any course of action they can take can be held up to be bad, and that's just a fact of life,” Mr. Fox said.